Mazzucco v. North Carolina Board of Medical Examiners

228 S.E.2d 529 (1976) 31 N.C. App. 47

Mary Frances MAZZUCCO and Geraldine Patton McClelland, Plaintiffs,
v.
The NORTH CAROLINA BOARD OF MEDICAL EXAMINERS, consisting of the following individual members: Dr. Joseph W. Hooper, Dr. Bryant L. Galusha, Dr. Cornelius T. Patrick, Dr. Vernon W. Taylor, Jr., Dr. Frank Edmondson, Dr. E. Wilson Staub, Dr. Charles B. Wilkerson, Jr., and Mr. Bryant D. Paris, Jr., Defendants.

No. 7610SC326.

Court of Appeals of North Carolina.

October 6, 1976.

William H. Elam, Charlotte, for plaintiffs-appellants.

Smith, Anderson, Blount & Mitchell by John H. Anderson, Raleigh, for defendants-appellees.

CLARK, Judge.

The defendants' motion under G.S. 1A-1, Rule 12(b)(6) to dismiss for failure of the complaint to state a claim upon which relief can be granted will only be allowed when, under former practice, a demurrer would have been sustained because the complaint affirmatively discloses that the plaintiff had no cause of action against the defendant. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970); Brown v. Brown, 21 N.C.App. 435, 204 S.E.2d 534 (1974).

The Board of Medical Examiners of the State of North Carolina was created by the General Assembly in 1859 "to properly regulate the practice of medicine and surgery." G.S. 90-2. These regulatory statutes now contained in Chap. 90, Art. 1, General Statutes of North Carolina, have been held to be a constitutional exercise of the police power of the State. State v. Van Doran, 109 N.C. 864, 14 S.E. 32 (1891); State v. Call, 121 N.C. 643, 28 S.E. 517 (1897); State v. Siler, 169 N.C. 314, 84 S.E. 1015 (1915); Hoke v. Board of Medical Examiners, 395 F. Supp. 357 (W.D.N.C.1975).

The defendant Board was created by statute as an agency of the State. An action against an agency of the State is in fact an action against the State. Insurance Co. v. Unemployment Compensation, 217 N.C. 495, 8 S.E.2d 619 (1940). It is settled law in this State that neither the State nor any of its institutions or agencies can be sued without its permission. Insurance Co. v. Gold, Commissioner of Insurance, 254 N.C. 168, 118 S.E.2d 792 (1961); Etheridge v. Graham, Comr. of Agriculture, 14 N.C.App. 551, 188 S.E.2d 551 (1972).

All defendants contend that the action should be dismissed because of the doctrine of sovereign immunity. Plaintiffs allege defamation, a cause of action in tort. Jurisdiction of tort claims against the State and its agencies is vested in the Industrial Commission under the Tort Claims Act, G.S. Chap. 143, Art. 31. But plaintiffs have no remedy under the Tort Claims Acts as it is applicable only to negligent acts of employees and other agents of the State. G.S. 143-291. Nor does this tort action come within the exception to the doctrine of sovereign immunity for contract actions recently announced in Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976), affg., 23 N.C.App. 423, 209 S.E.2d 336 (1974).

We find that the action against the Board of Medical Examiners was properly dismissed on the ground that the defense of sovereign immunity appeared on the face of the complaint.

However, this defense cannot be applied to the individual defendants because of the allegations that they acted maliciously and wantonly. Where state officials exceed or abuse their lawful authority, and thereby violate or invade rights of others, in an action to redress these injuries, the State's immunity does not extend to them. 72 Am.Jur.2d, States, Territories and Dependencies, § 115 (1974). No action lies against a public officer for an honest exercise of his discretion, though erroneous, but for a corrupt or malicious exercise of discretion such officer may be made to respond in damages to an individual injured thereby. State v. Swanson, 223 N.C. 442, 27 S.E.2d 122 (1943). The allegations in the complaint alleging that the individual members of the Board of Medical Examiners acted "maliciously, wantonly, knowingly and intentionally" without justification are sufficient to prevent the individual defendants from prevailing on the defense of sovereign immunity on a motion to dismiss under G.S. 1A-1, Rule 12(b)(6).

In considering a motion to dismiss for failure to state a claim upon which relief can be granted the allegations of the complaint are taken as true. Sutton v. Duke, supra. A claim should not be dismissed under Rule 12(b)(6) unless it appears that the plaintiff is entitled to no relief under any statement of facts which could be proved in support of the claim. Clouse v. Motors, Inc., 14 N.C.App. 117, 187 S.E.2d 398 (1972); Shuford, N.C. Civil Practice and Procedure, § 12-10 (1975).

All defendants also contend that the alleged defamatory statements are absolutely privileged. Absolute privilege attending communications made in the course of judicial proceedings was recognized at common law. Bailey v. McGill, 247 N.C. 286, 100 S.E.2d 860 (1957); Jarman v. Offutt, 239 N.C. 468, 80 S.E.2d 248 (1954). This common law immunity was extended to judges, prosecutors and witnesses. This absolute immunity applies only to actions for defamation and malicious prosecution, and the immunity is justified only insofar as is necessary to protect the judicial process. Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976).

Judicial and prosecutorial immunity rests on the principle that if not so protected, our judicial and prosecutorial officers, even though honest and conscientious, would labor under the constant threat of civil suit and judicial proceedings would be seriously hindered. Imbler v. Pachtman, supra; Bouligny, Inc. v. Steelworkers, 270 N.C. 160, 154 S.E.2d 344 (1967).

The broad general principle deducible from the cases is that the privilege attending communications made in the course of judicial proceedings will be extended to protect communications in an administrative proceeding only where the administrative officer or agency, in the proceeding in question, is exercising a judicial or quasi-judicial function. Annot. 45 A.L. R.2d 1296 (1956); 5 Strong, N.C.Index 2d, Libel and Slander, § 11 (1968).

One of the first duties of government is the protection of public health. No other object sought by governmental laws is more important. The General Assembly of North Carolina in creating and conferring regulatory power upon the Board of Medical Examiners recognized this sovereign duty and acted upon it. The public policy which supports the doctrine of absolute privilege fully supports the application of the doctrine to the Board of Medical Examiners and the individual members in the performance of their quasi-judicial statutory duties.

G.S. 90-14.2 requires the Board of Medical Examiners to give to the licensee "a written notice indicating the general nature of the charges against him" before revoking, restricting, or suspending any license. This is certainly a quasi-judicial function. It is clear from the Complaint that the notice of charges contained the alleged defamatory statements was the notice required by G.S. 90-14.2. The charges included conspiracy with and subornation of two female employees to say falsely that they had heard a newspaperman attempt to extort money from the licensee. These allegations were relevant to the further charge that the licensee had falsely complained to the Police Department of Charlotte that the newspaperman had attempted to extort money from him in exchange for withholding from publication a news story relating to the licensee's medical activities. Both the false accusation about the newspaperman and the related conspiracy and subornation could constitute "unprofessional or dishonorable conduct" in violation of G.S. 90-14.

We find that the action against all defendants was properly dismissed on the ground that the defense of absolute privilege appeared on the face of the Complaint, and the judgment of the trial court is

Affirmed.

MORRIS and VAUGHN, JJ., concur.